Oxfordshire County Council v Wyatt Bros (Oxford) Ltd & Ors

By subsections (1) and (2) of section 187B of the Town and Country Planning Act 1990 (hereafter “the TCPA 1990”):

“(1)

Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2)

On an application under sub-section (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.”

In this application Oxfordshire County Council (hereafter "OCC") seeks injunctive relief under section 187B in respect of a continuing breach of planning control arising from the deposit of waste at Waterstock Golf Course, primarily in 1997. The site, located in the green belt outside Oxford, 300 metres south of Waterstock village, is owned by Wyatt Brothers (Oxford) Limited, the first defendant. Michael and Ronald Wyatt, the second and third defendants, are the company's directors. The site is bounded by the River Thame to the north, the M40 to the west, the A418 to the south.

Enforcement notices requiring the first defendant to remove all waste materials from the land and dispose of such materials at a suitably licensed site were served on 23 September, 31 October and 12 November 1997. The last of these applied to all the land of the golf course owned by the first defendant, some 74.5 hectares, and included the land covered by the first two notices. A stop notice was served with it. The first defendant challenged the enforcement notices and, notwithstanding the stop notice and the provisions of section 187 of the TCPA 1990, continued to deposit material on the site. It considered that the material, some of which came from another site being developed as a service area for the M40 motorway and some of which was clay and topsoil extracted on part of the golf course site, was not “waste”. It continued to deposit material on the site until February 1998 when an injunction was granted preventing further deposits. I deal with the first defendant’s challenge to the enforcement notices later in this judgment (see paragraphs 15-18 below). At this stage it suffices to say that at the appeal before the inspector the terms of the notices were varied and that the challenge finally failed on 26 October 2001 when the Court of Appeal found in favour of OCC.

These proceedings were launched on 29 April 2005 in the Chancery Division. They were transferred to the Queen's Bench Division on 17 June 2005. The claimant seeks an order that the defendants remove all waste materials deposited on the land within a specified area (the tipped area) save insofar as the waste is permitted to remain or is not required to be removed by the requirements of the enforcement notices, and, in so doing return the tipped land to the contours described on a specified plan: 92957/922/002 Rev C. The claimant also seeks an order that the defendants must make lawful arrangements for the disposal of the waste and remove it in accordance with those arrangements, prepare the surface of the tipped area for seeding, and seed it with grass. Part of the tipped area consists of a void left by clay extraction activities and, as I have noted, part of the waste was material extracted from there. The claimant does not seek an order for that area to be prepared for seeding and be seeded.

It will be necessary to set out the somewhat complex factual and planning background to the present application, including the enforcement history of this site and the negotiations between OCC and the first defendant, its directors, and their advisers. The position is complicated because this is not the only breach of planning control by the first defendant in respect of this site. There is also a breach of planning control in respect of an irrigation lake and a haul road on the site. The defendants argue that to restore the land in accordance with the enforcement notices will not produce a good landscape solution because it will leave two bunds and a steep-sided and rather unnaturally shaped lake on the site. Moreover, they suggest that if they restore the land in accordance with the enforcement notices before they know what is to happen in respect of their other breach they are likely to incur additional expense. They also suggest that some of the waste will be required to shield residents from the lighting on a driving range. It does appear from reading the correspondence between the parties that Mr Alesbury was correct in stating at the hearing that there has been a serious breakdown of trust between the parties. Before turning to the evidence and the planning and enforcement history, I set out the legal principles governing applications under section 187B of the TCPA 1990.

The legal principles were settled by the House of Lords in South Bucks District Council v Porter [2003] 2 AC 558, UKHL 26. In that decision their Lordships endorsed the approach in that case of Simon Brown LJ, as he then was: [2001] EWCA Civ 1549, paragraphs 38-42. Simon Brown LJ stated that, while the jurisdiction under section 187B is an original and not a supervisory jurisdiction, it is clear that the judge on a section 187B application “is not required, nor even entitled to reach his own independent view of the planning merits of the case”. In Davis v Tunbridge and Malling Borough Council [2004] EWCA Civ 194, in a judgment with which Arden and Jacob LJJ agreed, Auld LJ stated (at paragraph 34) that the effect of the speeches in South Bucks District Council v Porter was as follows:

"1)

section 187B confers on the court an original and discretionary, not a supervisory, jurisdiction, so that a defendant seeking to resist injunctive relief is not restricted to judicial review grounds; 2) it is questionable whether Article 8 adds anything to the existing equitable duty of a court in the exercise of its discretion under section 187B; 3) the jurisdiction is to be exercised with due regard to the purpose for which [it] was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by a defendant of the relevant planning controls and procedures may weigh heavily in favour of injunctive relief; 4) however, it is inherent in the injunctive remedy that its grant depends on a court's judgment of all the circumstances of the case; 5) although a court would not examine matters of planning policy and judgment, since those lay within the exclusive purview of the responsible local planning authority, it will consider whether, and the extent to which, the local planning authority has taken account of the personal circumstances of the defendant and any hardship that injunctive relief might cause, and it is not obliged to grant relief simply because a planning authority considered it necessary or expedient to restrain a planning breach; 6) having had regard to all the circumstances of the case, the court will only grant an injunction where it is just and proportionate to do so, taking account, inter alia, of the rights of the person or persons against whom injunctive relief is sought, and of whether it is relief with which that person or persons can and reasonably ought to comply."

These cases concerned travellers who were occupying land in the areas of the respective local authorities without planning permission. In Porter's case the Court of Appeal considered four appeals from decisions by trial judges granting injunctions and allowed three of them essentially on the ground that the trial judges had taken too restricted a view of the discretion which they were called upon to exercise. In Davis's case, the decision of the trial judge granting the injunctions was affirmed. The main consideration against the grant of injunctions was the hardship that, on the evidence before the trial judge, eviction would cause the appellants because they had nowhere else to go. The judge had paid considerable attention to this (see Auld LJ at paragraph 64) but concluded that in the circumstances of the case the grant of the injunction was a just and proportionate step in the protection of the public interest in safeguarding the environment. The judge took the view, with which the Court of Appeal agreed, that the combination of the seriousness of the environmental damage caused by the planning violation in respect of what was a highly sensitive site and the appellants’ deliberately unlawful conduct in commencing and persisting in it for some three years outweighed the hardship the appellants would suffer in having to leave the site. The jurisdiction was further considered in Coates v South Buckinghamshire District Council [2004] EWCA Civ 1378, another case involving travellers. It was not in issue that the Council was entitled to the injunction. The only issue before the court was whether the obligation to comply with the injunction should be stayed pending the determination of a planning application that the travellers proposed to make. A majority of the Court of Appeal affirmed the decision of the trial judge to make the order but to suspend it for one month in respect of all but one of the travellers and for two months in respect of that traveller because of the evidence that an elderly relative, who was living with him, was in poor health.

While the principles stated in these cases apply regardless of context, the context is very relevant to their application and to an assessment of, in particular, the personal circumstances of the defendant, hardship, and proportionality.

On 1 July Ouseley J gave directions for the filing and serving of evidence by the defendants and any evidence in reply, and ordered each party to notify the other which witnesses were required to attend and to file and serve a list of the factual issues which exist and why they are significant for the application for an injunction.

The evidence in support of the claimant's case consists of three witness statements and supporting exhibits by Suzi Coyne. Ms Coyne is a freelance planning consultant who since February 2001 has acted on behalf of the claimant in planning and enforcement matters relating to Waterstock Golf Course. Before February 2001 she was one of the claimant's principal planning officers and the case officer for planning matters relating to the deposit of waste on the site. Her statements are dated 31 March, 1 August and 27 September 2005. The last of these was made in response to a statement made by the third defendant, Ronald Wyatt, on 19 September. This is Mr Wyatt's second statement. It deals with the refusal by the claimant in early September of a planning application concerning the site and updates his first statement made on 15 July by providing his evidence as to the current position as to the removal of material from the site, and how the matter might be resolved without the grant of an injunction. At the beginning of the hearing I gave permission for the admission of Mr Wyatt's second statement and Ms Coyne's third statement. Apart from Mr Wyatt's two statements, the evidence in support of the defendants' case consists of statements by Daniel Scharf, a planning adviser employed by Morgan Cole, the defendants' solicitors and Steven Sensecall, a partner of Kemp and Kemp Property Consultants, both made on 14 July 2005, and by Fraser Osment, a partner of LDA Design who since 1999 has acted as the first defendant’s landscape adviser, made on 13 July 2005. Mr Osment's role was to seek an acceptable landscape solution to the site with OCC. Mr Scharf dealt with planning matters including negotiations with OCC from 1997 when the enforcement notices and the stop notice were issued until late 2003 when Kemp and Kemp took over.

Neither party required witnesses to attend for cross-examination and no list of factual matters in dispute, which Ouseley J had ordered the parties to file and serve, was put before me. Mr Alesbury's skeleton argument states that "although it is plain that there are a not inconsiderable number of factual matters on which the parties take different views, the defendants, on consideration, take the view that it is appropriate for the court merely to note this state of affairs, rather than it being necessary for those matters to be resolved by the court for the purpose of these proceedings. Accordingly, the defendants' current view is that it is not appropriate to produce a list of factual issues in dispute of the kind provided for" in Ouseley J's order. Notwithstanding the position taken in his skeleton argument as to evidence and witnesses, Mr Alesbury argued that given the state of the evidence it is "absurd" for the court to deal with the factual issues and suggested that a joint survey was the way forward. Mrs Townsend's skeleton argument states that the claimant did not require witnesses to attend because the issues of fact are limited. The main areas of factual disagreement concern the amount of waste deposited on to the site and the amount removed during 2004 and 2005 and whether the claimant’s position as to what it was likely to accept as a solution has changed.

In August 1989 the South Oxfordshire District Council (hereafter "SODC") granted the first defendant outline planning permission for a golf course, a club house and an environmental reserve on the site and in July 1993 reserved matters, including 18 holes on one part of the site and an irrigation lake on the other, were approved. It was at that time envisaged that a requirement of the planning permission would be an irrigation lake. In 1994 SODC granted permission for a driving range on the golf course. There has since been consideration of the need to shield neighbouring properties from the glare of the lights by planting or otherwise. The first defendant considers that one way of doing this would be to create a bund: see paragraph 88 of Mr Scharf’s statement.

On 21 January 1994 the claimant granted the first defendant conditional planning permission for the extraction of clay. By condition 13 stockpiles of overburden and topsoil were prohibited except in accordance with details approved by the planning authority, and provided that stockpiles were not to exceed 2 metres in height. Condition 15 specified that the clay extraction was to be completed before 1 November 1995.

On 12 January 1996 the defendant was granted planning permission to continue to extract clay until 1 November 1997 or such later date agreed by the planning authority. A condition of this permission stipulated that the site was to be restored in accordance with details shown on two specified plans, such restoration to be completed within one year from the cessation of clay extraction or such later time that the planning authority may approve. It is not in issue that the void left by the clay extracted is of a different shape to that required by the planning permission and that the site has not been restored in accordance with the plans. Ms Coyne's second statement (paragraph 50) states the void is significantly different in shape to the approved form and goes beyond the permitted area of extraction. In August 1997 SODC refused an application for the first defendant for a new 9 hole course around the irrigation lake. In April 1998 the claimant refused a further application for an extension of the permission to extract clay. I interpose here that the breach of the conditions upon which the first defendant was permitted to extract clay has not, to date, led to enforcement action. Mrs Townsend has said it remains open to OCC to institute such action and submits that the fact that it has not does not preclude the granting of relief in the present proceedings in respect of the enforcement notices.

It is also not in issue that during 1994, 1996 and 1997 material was deposited on the site. The area in which the tipping occurred is some 12 hectares. The claimant considered this to be unauthorised tipping of waste and issued the three enforcement notices and the stop notice to which I have referred. The first defendant’s appeal against the enforcement notices was on the grounds set out in section 174(2)(a)-(c), (f) and (g) of the TCPA 1990, but the appeal on ground (a), that planning permission ought to be granted, lapsed and did not fall to be considered by the Inspector. I have referred to the fact that the first defendant continued to deposit material after the enforcement notices and the stop notice were issued. It maintained that material brought onto the site from the adjacent M40 services site was not waste but part of the reasonable construction of further golf holes and thus permitted. It also considered the clay and topsoil extracted to form the irrigation lake was not "waste" because it was part of the permitted work. The claimant considered the clay and topsoil extracted was “waste” because it was moved beyond the area of the permitted work to another part of the golf course site. An application by the first defendant to judicially review the decision to issue the stop notice was dismissed in December 1997 and in February 1998 the claimants obtained the injunction to which I have referred which prohibited the first defendant from depositing material.

Following a public inquiry between 26 January and 3 February 1999, on 7 April 1999 the Inspector, Mr Baldock, substantially upheld the enforcement notices and required the deposit of waste to cease within one day, the site to be restored by re-spreading the mounds of topsoil and removing waste within thirty weeks, and the land to be prepared for seeding within forty two weeks and to be seeded with grass within forty eight weeks. He described what had occurred as follows:

“11.

The eastern part has been the subject of the greatest activity. The landform as it now exists is the combined result of a number of actions. …..A lake has been excavated and blue clay exported. This was the subject of consents both from SODC and OCC. Overburden of brown clay has been deposited elsewhere on the eastern part. Topsoil has been stripped and formed into several mounds. In the centre next to the River Thame what Mr Lyne describes as a fairway has been created. Mr Lyne states that this was raised by about 1 m in 1994 and 1995 and consists of builders’ rubble overlain with some brown clay. This is now grass covered with no visible evidence of tipping. The land was wet at the time of my visit.

12.

There is a mound next to the 10^th fairway which defines the edge of the existing course (sometimes described as a demarcation bund). Mr Lyne says that this was formed during 1993-1994 and includes builders’ rubble and soil from within the site. To the east of the lake there has been a substantial raising of the land above original levels. Mr Tyce states that there was substantial tipping from November 1996 until September 1997, prior to the commencement of the MSA contract in October 1997. That would be consistent with the authorisation of enforcement action in June 1997, leading to the issue of Notice A in September. My Lyne visited the site in June 1997 and accepts that there was builders’ rubble and the beginnings of a mound in the north-east corner of the land. From my site visit the presence of substantial amounts of brick, hardcore, concrete and excavated subsoil which is not part of the MSA contract is apparent.

13.

Invoices submitted by WB show that MSA material was deposited between 20^th October and 14^th November 1997, 2^nd -5^th December 1997 and 21^st-25^th February 1998. This was excavated subsoil arising in the first instance from construction of the M40 in about 1989. This has been deposited on land nearby where a MSA was subsequently permitted. WB entered into a contract to take the material, with 120,000 cubic metres said to be available. Part of this material was used to infill the lake and a substantial quantity can be identified to the east of the lake.

14.

A bund has been formed on the eastern side of the driving range. A bund is required as a condition of a PP granted on appeal for the retention of the safety netting, which is shown in the relevant plan to be 2-2.5 m high and narrow, perhaps 4.5 m wide. In its present state the bund is of greater width and in part does not achieve the required height.

15.

A haul road has been constructed from hardcore and builders’ waste between the lake and the roundabout on the A418. This was permitted in conjunction with the clay extraction and a condition of that consent requires its removal. To the north-west of the driving range between the haul road and a public footpath which crosses the appeal land is a level area. There is a small store of stone and hardcore on this but looking from the footpath, which is at a lower level, it appears that the levelled area has been formed by the tipping of material including hardcore and builders’ waste.”

Conflicting evidence was given as to the amount of imported material on the site. The Inspector considered that the Council's estimate was unreliable because it depended on observation: see paragraph 16 of the decision. He agreed that calculations undertaken on behalf of the appellants by Komtech Ltd based on interpolating 1m contours from the 5m OS data for original levels could provide a guide but expert evidence had not been given enabling scrutiny of the manner of interpolation. If, as Komtech’s calculations assumed, 50,000 cubic metres of clay were removed, the volume imported to the surveyed area would be 80,000 cubic metres excluding the overburden. He considered their assertion of a margin of error of 10% could not be relied on: see paragraph 17 of the decision. He referred to the evidence of partial copies of invoices for the tipping of the motorway service area subsoil showing 3,772 vehicle loads, which the appellants claimed amounted to 56,000 cubic metres which figure the council claimed should be increased by about 9,000 cubic metres: see paragraph 18 of the decision.

The Inspector made a number of amendments to the notices. The first, reflecting the preferences of OCC and the first defendant, was that a requirement to return the land to original contours was substituted for the requirement to remove the waste. This was done because the requirement would be more precise and monitoring of implementation more straightforward: see paragraph 47 of the decision. The land from which the waste was to be removed pursuant to the third enforcement notice was identified on plan, 92957/922/002 1041 Rev C, which plan described the contours to which the land was to be returned. The requirement to remove all waste materials from the land identified and return the land to the contours described did not apply to three features of the site; a bund adjacent to the driving range to which I will return, a bund at the edge of the 18 hole course, and waste material forming part of a haul road. The requirement also differs from that in the enforcement notices in that it does not also expressly require the removal of the deposited waste. An appeal by the first defendant against the Inspector's decision succeeded in the High Court, but on 26 October 2001 the Court of Appeal allowed an appeal by the claimant and the Secretary of State so that the enforcement notices, as varied by the Inspector's decision, including the periods specified in them, came into force on that date. Accordingly, the period for removing the waste expired on 24 May 2002, and for reinstating the land on 27 September 2002.

The reason the Inspector did not require restoration to the specified contours in respect of the bund adjacent to the driving range requires explanation. The first defendant had obtained permission from SODC for a driving range but erected netting and a steel structure for which it had no permission. The District Council brought enforcement proceedings but in February 1997 an appeal by the first defendant succeeded and the erection of the safety netting was permitted provided the first defendant carried out landscaping proposals they had suggested within specified time limits. One of these was the formation of an earth bund at a height of between 2 to 2.5 metres. In his decision dismissing the appeal against the enforcement notices the Inspector stated (paragraph 41) that since the formation of a mound adjoining the driving range is a condition of the planning permission granted for the safety netting it would be inconsistent to require the removal of material incorporated within it. It is not in dispute that the planting contemplated and required as part of the landscaping condition has not been carried out.

In May 2001 the first defendant applied for planning permission for the creation of a 9 hole golf course on the site. By section 180 of the TCPA 1990 the effect of a grant of planning permission on an enforcement notice is that “the notice shall cease to have effect so far as inconsistent with that permission”. In February 2002 the scheme proposed was amended and, in a letter dated 8 February, Mr Osment stated that 3,496 cubic metres of material would be removed from the site. The application was refused on 28 May 2002. On 22 October 2002 the first defendant made a further application for the creation of a 9 hole golf course using already deposited waste. The planning authority rejected this application on 21 May 2003. The first defendant had appealed against the refusal of the May 2001 application and, following an inquiry, on 5 September 2003 its appeal was dismissed. In his decision, the Inspector, Mr Merelie, stated that he concluded that the application conflicted with the relevant waste and greenbelt policies, and would introduce an intrusive alien feature in the locality: see paragraphs 29, 35-36, 47 and 56 of the decision.

The Inspector also stated that he was in no doubt that, as currently deposited, the waste seriously detracts from the hitherto openness of this part of the greenbelt given its height and extent: see paragraph 34. The exact quantity of deposited waste was again in dispute: see paragraph 24 of the decision. Ms Coyne estimated that some 160,000 cubic metres of waste had been deposited. The first defendant's estimate was that, excluding the deposited overburden, some 83,000 cubic metres of material and overall 100,000 cubic metres had been deposited. The Inspector made his decision without determining this. What he said is that the quantity of waste deposited was not specifically tailored from the outset for the 9 hole golf course, and it was not deposited with the care and positioning that would have been commensurate with a future golf course construction. A significant amount of the material would have to be relocated and reworked, including ripping and, in the absence of a full working method statement, it was difficult to judge how feasible or successful that would be.

The first defendant launched a challenge to the Inspector’s decision but withdrew it in March 2004. On 4 August 2004 it applied to vary the permission to extract clay. Mr Sensecall's statement states (paragraph 23) that this was an application to restore the lake. The claimant did not register this application because it considered it to be invalid on the ground that it included the retention of unauthorised waste. The first defendant decided to make a further application for permission to remodel the site and to retain waste over part of it. There were again difficulties. The claimant considered that an application submitted in August 2004 could not be considered because the site was larger than the clay extraction site and involved the retention of waste and that an application submitted on 17 September 2004 was invalid because it did not contain the plans necessary to describe the development.

There were further negotiations and a planning application was submitted on 24 February 2005 and acknowledged by the claimant on 28 February 2005. This application does not cover the whole of the area subject to the enforcement notices. In his submissions Mr Alesbury said this was because the defendants accepted that in respect of the area not covered, they had to comply with the requirements of the notices. The application only concerns the part of the site in respect of which they do not wish to comply with the notices. It has to be observed that the first defendant has not complied with the enforcement notices on the area not covered by the recent application. Nor are there before the court proposals for so doing. There were further requests for clarification by OCC. The Council stated that until the information was received the application would be regarded as invalid. This application envisages and would require the retention on the site of approximately 23,087 cubic metres of waste material: see paragraph 6 of Kemp and Kemp's comprehensive response dated 20 June 2005 to OCC’s request for further information. The application was refused on 5 September 2005 and the defendants have stated they will appeal when they receive the formal decision.

Even before the Inspector's decision in April 1999, there were discussions about a possible solution involving tipping waste into the lake void but these came to nothing. A letter dated 29 October 2001 from David Young, OCC’s Director of Environmental Services, states that at that stage the first defendant had been advised to put forward proposals and a planning application but did not do so. After the Inspector’s decision, notwithstanding the appeal, there were discussions between the parties with a view to settling the matter. Since one of the grounds upon which the defendants resist the application for an injunction is that the claimant’s position as to what it was likely to accept as a solution has changed during the negotiations, it is necessary to set out what transpired. The negotiations are conveniently summarised in the decision of 5 September 2003 in which the defendants' appeal against the claimant’s refusal of their application for the creation of a 9 hole golf course using deposited waste on the site was dismissed by the Inspector. The decision states inter alia:

“9.

Since 1999 there have been negotiations between the appellants and the council to find a compromise solution that will allow the construction of a 9 hole golf course without full compliance with the enforcement notice. At the outset, the council indicated by letter dated 13 October 1999 that removal of a substantial proportion of the waste material from the area to the east of the irrigation lake would be required.

10.

Another guiding principle was the need to reflect very closely the underlying land form prior to depositing the waste, using the existing 18 hole golf course as an example of what might be acceptable. A layout that was elevated well above the pre-existing contours would not be acceptable, even if it resulted in an attractively designed landscape. But it was also made clear that there may be a case for some of the waste material to remain in certain areas of the site.

…….

12.

Essentially the current proposal is based on re-shaping the inert waste material, in particular by removing some of the material from the east side of the irrigation lake to its west side, thereby smoothing out the steeper contours in that area an lowering the profile to the east. The material deposited on the flood plain within the site would also be moved.

13.

The proposal is not therefore based on removing the waste material from the site, other than incidentally during the course of construction as a result of finding, say, large lumps of concrete and tarmac. The small amounts of wood, metal and plastic encountered during the Environmental Agency’s inspection of the site in August 1997 would also be removed, if unearthed.”

Notwithstanding what is said in the decision the defendants maintained that the Council has changed its stance and has, in effect, “moved the goalposts”. This argument is based on a number of the letters between the parties and Mr Osment's evidence. I refer to the letters but also to other correspondence which puts them in context. The first letter relied on by Mr Alesbury is the one dated 13 October 1999 referred to in the Inspector’s decision. It is from Craig Blackwell an ecologist in the OCC Environmental Services Department, and followed a site meeting on 24 September and a telephone call. It sets out the main points under consideration.

“(i)

The Inspector's report confirmed the enforcement notice which requires the removal of practically all the waste material with the exception of some bund material along the southern and western boundaries of the tipped area.

……

(iii)

There is thus a need to return the land form to something very close to the pre-existing contours. An application which proposes anything less is likely to result in a recommendation of refusal.

(iv)

Within this context, any plans which you prepare should take into account the following principles:

(a)

Softening the contours and reducing the height of the bunds in part along the southern and western boundaries.

(b)

Removal of a substantial proportion of the material from the area to the east of the lake where the mounding is excessively high.

(c)

the need to reflect the underlying land form and using the existing golf course as an example of what might be acceptable to the planning authority.

(v)

A layout which results in a landscape, however attractively designed, which is elevated well above and therefore does not reflect the pre-existing land form will not be acceptable.”

Mr Alesbury relies on the phrase “removal of a substantial proportion of the material”. In a letter dated 14 February 2000 David Young stated inter alia that none of the various schemes put forward by the first defendant reflected the terms of Craig Blackwell’s letter, and that the objectives of the Council and Wyatt Bros “seem to be a distance apart”. “Officers have indicated that there may be a case for some of the waste remaining in certain areas of the site… However, your aim would appear to be simply to move it around the site, which in the landscape context (just one of several issues) is not acceptable”.

Mr Alesbury also relies on Mr Osment’s evidence as to the negotiation process concerning "compromise contours" between Ms Coyne and himself in March and April 2000. In paragraph 15 of his statement it is stated that the compromise contours:

“demonstrate that the intention was to base an acceptable scheme on the contours shown on the plan provided by Ms Coyne for the western part of the site. On the eastern part of the site I agreed with Ms Coyne that an average of 1 metre depth of on site material could be used to shape the golf course. The eastern part of the site is about 4 hectares in site so an average of 1 metre over this area could amount to up to 40,000 cubic metres of material. This agreement demonstrates the willingness of OCC to retain a substantial amount of imported, or technically ‘waste’, material on site.”

Mr Osment exhibits an exchange of emails between himself and Ms Coyne. In an undated email Ms Coyne comments on a fax sent to her and states that she is “concerned about the statement at the end of the first paragraph: ‘and add up to 1 metre depth of fill for the purposes of drainage and shaping the course.’ I would not wish to see a further 1 metre depth of fill over already filled land.” Mr Osment replied on 3 April 2000 stating that he was referring only to the contours on the eastern part of the site and that “the revised land form will be achieved by removing material from the eastern part of the site to a level 1 metre above the contours shown on plan 5” but that “proposed contours for the western part of the site will be similar to those shown on plan 5: no extra fill will be required.”

Mr Osment states (paragraph 30) that “there was consistent recognition in all of the discussions I ever had with OCC officers that at least some of the alleged ‘waste’ material should remain on site, indeed that it was needed in order to reach an acceptable landscape solution.” Mr Alesbury submits that the discussions between Mr Osment and Ms Coyne in March and April 2000 showed an agreement by OCC to a scheme which would leave 40,000 cubic metres of “waste” on the site: the amount of waste which he stated in oral argument remained on the site.

An indication of what the first defendant was seeking to achieve at that time is seen in a letter dated 4 August 2000 from Morgan Cole, the first defendant’s solicitors, to the Chief Planning Officer. This was shortly before the hearing of the appeal against the Inspector’s decision. The letter inter alia conveys the first defendant’s “disappointment that it has not proved to be possible to formally satisfy the County Council that the imported material can be made into an acceptable landscape incorporating the 9 golf holes prior to the final preparations for the Court hearing”. In a letter dated 8 November 2000 to Morgan Cole, Mr Young states that a plan received from Fraser Osment under cover of a letter dated 19 October 2000 did not accord with the discussions between Ms Coyne and himself which involved a compromise plan under which a draft scheme adding "up to 1 metre depth of fill for the purpose of drainage and shaping of the course" was agreed. There was, apparently, no response to this letter.

Mr Alesbury also relies on the evidence of Mr Osment that OCC officers had consistently agreed in all discussions to many problems with the enforcement plan, in particular that the approved bund along the driving range is very steep and narrow, that the enforcement plan does not show contours around the lake void where there are very steep slopes, and that there are no plans of the demarcation bund between the existing golf course and the proposed 9 hole course: see paragraph 26 of Mr Osment's statement.

The next document relied on by Mr Alesbury is a letter dated 26 March 2001 from Chris Cousins, OCC’s Assistant Director of Land Use Planning, to Mr Ron Wyatt about matters that he undertook to follow up on at a meeting on 27 February 2001. This letter states:

“1.

It was agreed that your landscape architect would within about 2 weeks provide a revised scheme for construction of the proposed new 9 hole course using waste material already deposited on the course. Within the 65 and 60 contours on the land to the east of the lake the scheme would use up to a 1 metre depth of material over agreed pre-existing contours (as shown on March 2000 plan 5 alternative contours version) to shape the course.

2.

The scheme would provide details of where the surplus spoil would be disposed of.

3.

I do not consider that the current proposed driving range bund is strictly necessary for screening the lights. Planting would be equally if not more effective and more in keeping. However, given that planting has not been done, a bund could give an earlier screening effect. Consequently I would be prepared to consider a proposal to extend the bund around the north eastern corner only of the driving range as part of any revised scheme submitted to the County Council. However you would have to demonstrate how this would mitigate the effect of the driving range on nearby properties and include suitable planting measures. It must be limited in scale to what is necessary to achieve screening and must not be simply a means of retaining waste material on the site.”

Mr Alesbury submits that this shows that the Council was willing to contemplate that there might be up to a 1 metre depth of material over pre-existing contours on the eastern part of the site and that it was willing to contemplate a proposal to extend the bund.

On 14 September 2001, just over a month before the decision of the Court of Appeal, Mr Ronald Wyatt had a meeting with Ms Coyne and Mr Blackwell. A letter dated 2 October 2001 from Mr Wyatt to Mr Cousins in the light of the meeting shows he was still hoping that an application to retain the imported material on the site would be approved. He stated that “a plan has been agreed with the officers implying no export of material”. Mr Cousins replied in a letter dated 4 October stating that it was not the case that a plan had been agreed with the officers, that at the meeting on 14 September Mr Wyatt was told that the scheme before the Council at that time was not acceptable for a number of reasons, and that at no point was it implied that there should be no export of material. In a letter dated 10 October to Mr Cousins Mr Wyatt maintained his position. The reply to this letter, dated 29 October 2001, is from Mr Cousins’ boss, David Young. He stated those involved at the meeting advised him that the account in Mr Cousins’ letter (dated 4 October) was correct and he set out the reasons the proposed changes to the enforcement plan discussed on 14 September were not agreed. The letter also states:

“The County Council’s preferred option would be for all the unauthorised deposited waste to be removed from the site, as required by the enforcement notices. However, in the interests of a pragmatic solution, and provided very special circumstances for overriding green belt and other planning policy can be demonstrated, there may be a case for retaining some of the waste if the landscape solution is acceptable.”

The next letter relied on by Mr Alesbury is one dated 18 October 2002 from Robert Hanson, of the OCC's Legal Services Department, to Daniel Scharf. In this letter, it is stated inter alia:

“…..I can reiterate the key points that would have to be met by a proposal before officers could recommend it for approval. I should however stress that the recommendation to be made on any proposal would depend on the overall scheme and the results of consultations. The starting point would of course be the extent to which any proposal was in accordance with the development plan, in line with section 54A of the 1990 Act.

The key points are set out below.

1.

The existing high, steep sided mounding must be altered so as to successfully integrate with the existing land form and return the overall land form to something closer to the pre-existing contours by:

(a)

Softening the contours and reducing the height of the bunds in part along the southern and western boundaries.

(b)

Removal of a substantial portion of the material from the area to the east of the lake where the mounding is excessively high.

…….

4.

No further import of material should be involved.

…….

You will note that no reference is made in these key points to a limit of 1 metre of material over pre-existing contours. I should stress that this is not to say the depth of fill of greater than this would be acceptable. That limit was put forward by David Young in February 2001 as a potential pragmatic compromise. Given the present position, however, it is felt that the key points should go back to first principles.”

Mr Alesbury relies on the phrases “return the overall land form to something closer to the pre-existing contours”, “reducing the height of the bunds” and “removal of a substantial proportion of the material from the area to the east of the lake”. It is to be recalled that a further planning application (taken into account in the Inspector’s decision of 5 September 2003 according to Mr Cousins’ report recommending the institution of these proceedings) was made on 22 October 2002, a few days after Mr Hanson’s letter.

Following a report dated 23 November 2004 by Chris Cousins, OCC's Head of Sustainable Development, to OCC's Director for Environment Economy, on 8 December 2004 it was decided to institute proceedings.

After setting out the planning history, the background to the enforcement action, the enforcement action, and the three options under the TCPA 1990 for legal action, Mr Cousins’ report commented on the advantages and disadvantages of each. The options considered were; entering the land, taking the steps and recovering any expenses reasonably incurred from the owner (section 178), instituting criminal proceedings under section 179, and applying for an injunction pursuant to section 187B. Direct action was not recommended on the ground that it was more appropriate to permit the owner of the land to remedy the breach if possible. Criminal proceedings were considered appropriate but would not secure compliance, and, in view of the length of time for which the breach has continued, the report states that it is appropriate to bring criminal proceedings together with an application for an injunction. The report states that none of these options resolve the position of the lake void for which a restoration scheme is required but that, while this is regrettable, it should not prevent the Council from pursuing the owners for failing to remove the waste. The Council can, if necessary, then devise a scheme and impose it on the owners by way of enforcement for breach of condition. The report considers two claims by the defendants; that Council officers accepted the principle of some waste remaining on the site, and that the enforcement plan is not a good landscape solution because it allows two incongruous bund features to remain and an artificial lake with steep sides and a rather unnatural shape.

On the first of the defendants’ claims, copies of all the correspondence were annexed to the report. The report itself considers the discussions between the parties in paragraphs 30-34. It uses examples from the correspondence, including Mr Hanson’s letter dated 18 October 2002, an extract from which is set out in paragraph 35 of this judgment, the exchanges in October 2001, in 2000, and the letter dated 13 October 1999 from Mr Blackwell quoted in paragraph 25 of this judgment. Paragraph 31 of the report states, of the correspondence in 1999 after that letter, “unfortunately none of the schemes that were submitted by Wyatt Bros followed this advice”, and paragraph 33 that, “in the Council’s letter dated 18 October 2002 the principles of an acceptable scheme were re-confirmed following the refusal of the planning application for retaining all the waste on the site in May 2002”. Paragraph 34 states:

“In addition the difference between some of the waste and all of it remaining is significant and the two alternatives have different planning consequences. Quite apart from the large-scale landscape change that the considerable volumes of deposited waste have caused, there are issues to be resolved such as waste planning policy which does not support landraising such as this, the effect on the openness of the green belt and removal of waste from the flood plain. If nevertheless only small amounts of waste are retained for example to create essential golf course features, then these policy and other issues may not be breached. Consequently in the absence of an acceptable scheme that follows the principles set out in the letter of 18 October 2002 (which do not rule out the retention of some of the waste in a suitable landscape form) the Council has to rely on the requirements of the enforcement notice to achieve an appropriate planning solution.”

The claim that the enforcement plan is not a good landscape solution is considered at paragraphs 35-41 of the Report. It concedes that the plan may not be an ideal solution but states (in paragraph 36):

“it is far more acceptable than any other scheme that has been put forward by Wyatt Bros over the years. It shows the overall pre-existing gently sloping contours and if complied with the site would be readily assimilated into the river landscape.”

It considers the three features which the defendants rely on as incongruous, and, while accepting that they are not entirely consistent with the landscape context, concludes that their impact is far less harmful than the effect of the mounds of waste and plateauing of the site where it would otherwise naturally be falling towards the river. The reasons for this conclusion are set out at paragraphs 37-40 of the Report. The Report’s overall conclusion in paragraph 41 is that the enforcement plan, “in the absence of an acceptable alternative, offers the best landscape solution available. Furthermore, it resolves all other harm to issues of importance, by removing the conflict with planning policy, the openness of the green belt, and protecting the floodplain.”

Following Mr Cousins' report and the Director’s decision on 8 December 2004 almost four months passed until the institution of these proceedings on 29 April 2005. During that period Mrs Townsend stated the Council sought to establish the extent to which waste was being removed from the site. The defendants had told the claimant that substantial quantities of material were being removed from the site: see paragraphs 21-22, 24, and 31-33 of Mr Sensecall's statement. There had been letters between the parties about this before the decision to institute proceedings. Thus, in a letter dated 10 February 2005 Mr Froud-Williams of Kemp and Kemp enclosed copies of "tickets" supplied by haulage contractors detailing the removal of 145 lorry loads of material between the end of August and the beginning of October 2004. The letter states that the removal of waste from the site began in March 2004 though records were only kept since August 2004. In the letter the defendant maintained that approximately 3,000 cubic metres of waste material had been removed from the site at that date and that preparatory work was underway to remove further waste material in the near future. Mr Wyatt's evidence is that 5,000 cubic metres were removed in 2004. Mr Cousins' report states that there is no evidence at the time of his report that waste was being removed from the site. As part of OCC's inquiries, on 21 March 2005 Robert Hanson on behalf of the Head of Legal Services wrote asking for copies of the waste transfer notes required by the Environmental Protection (Duty of Care) Regulation SI1991 No 2839 to be supplied. In a letter dated 29 March 2005 Mr Froud-Williams enclosed notes for the 145 lorry loads and a further 9 loads for the period between 25 October and 1 November 2004. In fact he supplied additional notes for the removal of a further 12 loads, making a total of 157 loads.

In a letter dated 1 April 2005 Mr Dance, OCC's Planning Implementation Manager, wrote to Mr Froud-Williams stating that the Council was concerned about the moving of topsoil. There has been further correspondence between the parties about the amount of material and its nature removed since the institution of proceedings. In July 2005 a planning contravention notice was served and Mr Froud-Williams replied to this in a letter dated 8 August 2005. He stated that he was enclosing waste transfer notes and that these detailed the removal of roughly 31,781 tonnes of waste material from the site which he said equated to approximately 21,187 cubic metres. Ms Coyne’s third witness statement states of these notes that those from Sheehans, the contractor on site, do not state the weight of the material transported, but she exhibits a reply from Sheehans to the planning contravention notice served on them in which they state they transported approximately 10,266 cubic metres. On the basis of that she states that the notes covered 2004 and 2005 and were in respect of 15,779 cubic metres of waste. No further notes were supplied prior to the hearing.

The claimant submits that the injunction should be granted in the terms sought for the following reasons. First, it, as the planning authority, considers that the breach which has continued since 1997 is causing serious harm in planning terms, a view shared by the 2003 Inspector’s decision. The restoration of the land is now urgent. Secondly, the defendants’ conduct demonstrates that they will avoid removal of the waste from the site if they possibly can. Thirdly, the defendants have had the opportunity to secure planning permission for an alternative but the two planning applications submitted were not within the parameters of what the claimant indicated might be acceptable; the first refusal was upheld on appeal. Fourthly, the most recent planning application does not cover the entire site and there has been no restoration or proposal to restore the part of the site not covered by that application. Fifthly, the injunction is a proportionate response to the harm caused; the impact will be financial rather than personal. Moreover, consideration should be given to the income the first defendant has derived from its unlawful activities. The claimant has carefully considered the planning merits of the enforcement plan in landscape terms and the need to resolve the breach of planning control has been found to outweigh the identified shortcomings.

The defendants accept that there is a continuing breach of the enforcement notices although paragraph 3 of Mr Alesbury's skeleton argument describes it as “technical”. The defendants resist the relief sought on a number of grounds. The first is that the extent of the breach has been “drastically reduced” from the time of the confirmation of the enforcement notices: skeleton argument, paragraph 3. Secondly, they argue that since 1999 they have been actively seeking a solution but proposals which they put to the claimant “with the intention of implementing previous hints and suggestions coming from OCC itself” and which they “thought met some previously indicated set of criteria obtained from OCC officers” were somehow unacceptable: skeleton argument, paragraph 4. Thirdly, the result produced by detailed implementation of the requirements of the enforcement notices would be unsatisfactory, because it was originally envisaged that some of the waste that has to be removed was to be stockpiled and reused in landscaping and restoration. It is said this has been acknowledged by OCC's officers who have said that it would be acceptable in principle if a certain amount of the waste remained on the site to produce an acceptable result in landscape and golfing terms: skeleton argument, paragraphs 5 and 12. Reliance is placed on the features mentioned in Mr Cousins’ report which the defendants say would be unsatisfactory in landscaping terms. Mr Scharf’s evidence also refers to the fact that it was envisaged that some waste would be used to form bunding that would help screen the driving range lighting. It is also said that the enforcement notice plan is inaccurate and to restore the site in accordance with it would leave a dangerous edge to the lake. Fourthly, the defendants maintain that the waste now on the site is no more than would be needed to produce this result under their latest planning application, submitted earlier this year, refused by the claimant, but which is to be the subject of an appeal. They argue that no order should be made pending their appeal against the refusal of this application for planning permission because if they are successful the removal of waste which would then have to be brought back would be pointless and if they do not succeed they are prepared to undertake to “seek to implement the enforcement plan itself, in spite of its absurdities”: skeleton argument, paragraph 15. The latter reflects a letter dated 19 September 2005 from Morgan Cole, the defendants' solicitors, to the claimant in which the defendants offer to undertake to comply with the enforcement notices "insofar as they are capable of compliance". It is said on behalf of the defendants that for these reasons it would be "absurd and illogical" to grant an injunction in support of the enforcement notices: skeleton argument, paragraph 14. Paragraph 28 of Mr Wyatt’s first statement refers to what he describes as the very damaging financial effect of an injunction because it would not produce the completion of a usable golf course or a result which anyone would regard as a final solution. It is also argued that it is inappropriate to make an order against the second and third defendants because the enforcement notices were served on the first defendant, which is the owner of the land.

The first issue is the extent of the breach. There are two aspects to this. The first is one of quantity and depends on how much waste was brought onto the land, and how much waste has been removed since 2004. The second aspect of this issue can be described as one of appearance in so far as the enforcement plan agreed at the appeal requires the restoration of the site to specified contours,

The second issue is the nature of the breach. Is it, as the defendants argue, a “technical” breach, or is it, as the claimant argues, one which is prolonged and substantial and which causes considerable harm in planning terms? While there is some overlap between these issues, the second issue also concerns whether the breach was deliberate, either initially or at a later stage, what has been done since the Court of Appeal’s decision, and whether the disadvantages of what is required by the enforcement plan in whole or in part justify the position taken by the defendants.

The third issue is what was referred to as the “moving the goalposts” point. Have the dealings between the claimant and the defendants over the years, and in particular the statements in the correspondence that the land form be returned to “something closer to the pre-existing contours” and that a “substantial portion” of the material from the area to the east of the lake be removed, made it inappropriate to grant the claimant the order that it seeks. The fourth issue is whether the claimant has considered all material circumstances in deciding to seek an injunction. The fifth issue is whether the defendants are likely to comply with the terms of the enforcement notices without an injunction. The sixth issue is whether any relief should be suspended pending the outcome of the appeal from the refusal of the latest application for planning permission.

The extent of the breach

The report of the Inspector in 2003 shows the difficulty in determining the total amount of unauthorised waste on the site, that is the waste brought onto the site from the motorway services area and the material removed from the area dug for the formation of the lake and the extraction of clay. In these circumstances the claimant invites me to have regard to the first defendant’s own estimate at the time of the 2003 inquiry that the total was some 100,000 cubic metres.

Mr Alesbury submits that the quantitative issue of how much waste was brought onto the site is unknown because a substantial proportion of it is indigenous brown clay "overburden" which originates from the site itself, and has therefore not been brought onto the site in any organised way, and the other substantial portion is subsoil originating from the nearby motorway service area site. Paragraph 9 of his skeleton argument states that the amount imported from the motorway service area is unknown because it was “available opportunistically in circumstances where it was not regarded at the time as any kind of waste material which needed careful recording”. Accordingly he considers that the only way of reaching a view on this quantitative issue is by adding the waste removed from the site to the waste the defendant's wishes to retain there and will retain there if its appeal against the refusal of its latest planning application succeeds. Mr Alesbury's suggestion overlooks the conflict in the evidence as to the amount of waste that has been removed from the site. It, moreover, begs a number of important questions, in particular why the first defendant's own estimate made for the purposes of its application for the 9 hole golf course and the appeal in 2003 should be disregarded. On that estimate there was a very substantial breach at any rate until the first defendant started to remove waste in March 2004. It is said (see skeleton argument paragraph 11(b)) there is no need to resolve the quantitative issue because the clay overburden is “originally indigenous to this site, and completely indistinguishable from the identical material on site which is not required to be removed”. This factor, does not, however, in the light of the affirmation by the Court of Appeal of the Inspector's decision, affect the extent of the breach although it may affect its nature. The confirmation of the enforcement notices, as the defendants now accept, means that their argument that the extracted clay was not waste was rejected.

I have referred to the conflict in the evidence as to the amount of waste taken off the site since March 2004. Mr Sensecall's statement (paragraph 19) states that in 2004 3,000 cubic metres of waste was removed. Mr Wyatt's first statement states that 5,000 cubic metres were removed and this was a substantial volume: see paragraphs 19 and 21. Ms Coyne's evidence is that for 2004 there is only documentary evidence to support the removal of 2,000 cubic metres of material. She, however, doubts that the material removed was all waste. She states her investigations with the recipient, a Mr W J Wyatt, the description on the transfer notes and the nature of Mr Wyatt's business lead her to believe it was more likely that the loads consisted predominately of topsoil. In paragraphs 12 and 13 of Mr Wyatt's second statement he states that no topsoil that was indigenous to the site was removed, only topsoil that came from the motorway service area.

It is clear that during the course of 2005 a greater amount of material has been removed from the site. Mr Wyatt’s first statement was that by mid August 40,000 tonnes were to be removed from the site and his second statement states that this amount has been removed. This is approximately 26,000 cubic metres. I have referred to Ms Coyne's evidence that there is only documentary evidence for the removal of 13,999 cubic metres in 2005, i.e. a total of 15,799 cubic metres over the two years. The claimant submits that the absence of the documentary evidence required for the transportation of waste by the Environmental Protection (Duty of Care) Regulations 1991 SI 1991 No 2839 means that Mr Wyatt's 40,000 tonnes, i.e. 26,000 cubic metres, should not be accepted and overestimates the amount of waste removed by 100%. It is argued that it is for the first defendant to satisfy the Court that this amount has been removed and that on the evidence the court should not be so satisfied, particularly since the documentary evidence is largely for the period since the claimant served a planning contravention notice.

It is clear that until 2004 virtually no material was removed. If the absence of documentary evidence to support Mr Wyatt's assessment of how much waste has been removed, and the fact that some of the material removed has been topsoil are ignored, on the defendants’ evidence, over the two year period a total of 31,000 cubic metres has been removed, 5,000 in 2004 and 26,000 in 2005. The defendants argue that a substantial amount has been removed because (see paragraph 10 of Mr Alesbury's skeleton argument) “the common sense view of the situation is that the total amount of so called ‘waste’ which looks ever to have been on the site in the period 1999 to 2004 consists of approximately 40,000 tonnes [26,000 cubic metres] removed recently, plus the approximate 23,000 cubic metres (about 32,200 tonnes at 1.4 tonnes/cubic metres) hoped to be retained there in connection with the 2005 planning application”. Mr Alesbury thus argues that the total amount of waste on the site from both the motorway services area and the clay extraction is 58,200 cubic metres. This is an extraordinary submission for which there is no evidential basis. It is to be recalled that at the 1999 Inquiry the Inspector referred to the claim by the first defendant on the basis of partial copies of invoices that 56,000 cubic metres were imported from the motorway services area alone and that for its 2001 application and the appeal its estimate was that, excluding the overburden, some 83,000 cubic metres of material was imported and, including the overburden, the total was 100,000 cubic metres. It does not, moreover, sit comfortably with the statement by Mr Alesbury in a note provided after the hearing that, if an order is made, a minimum of 11 months ought to be allowed for the requirements involving earth movements.

In view of this, I have concluded that, for the purposes of this application, it is not necessary to determine precisely how much material has been removed. Even on the evidence on behalf of the defendants as to the amount of waste removed, the extent of the breach from a quantitative point of view cannot be said to be “technical” but is substantial. If one starts with the defendants own 2003 estimate of 100,000 cubic metres of waste and deducts the 31,000 cubic metres which the defendants state have been removed, less than a third of the deposited waste has been removed and some 69,000 cubic metres remain on the site. Moreover, the first defendant’s current planning application envisages retaining and using approximately 23,087 cubic metres of the waste material. Accordingly, if its appeal against the refusal of permission is successful, some 46,000 cubic metres of waste would need to be removed for which there is at present no plan for removal.

I have referred to the more qualitative aspect of the extent of the breach. This is equally important. Having regard to the outcome of the planning inquiry and the dismissal of the defendants' appeal on 5 September 2003, and the statement of the Inspector that the waste seriously detracts from the hitherto openness of this part of the greenbelt given its height and extent, the breach cannot be seen as “technical” on a qualitative basis. Mr Wyatt's second witness statement, made very shortly before the hearing, raises the question of the accuracy of the enforcement plan and thus of the contours to which the land must be restored on the basis of a survey by Bowden Construction Services. The claimant submits that this survey in fact demonstrates that the defendants are not complying with the enforcement notices and that the recent activity on the site, the movement of material from one part of the site to another, is in itself operational development for which no planning permission has been sought and a further breach of planning control. This issue is also raised by the defendants in the context of whether an injunction to comply with the enforcement notice plan would leave a dangerous edge to the proposed lake. The accuracy of the enforcement notice is a matter which should have been raised at the 1999 appeal when the proposal to restore to specified contours was agreed as an appropriate requirement should the notices be upheld. It was not raised then and, in view of the litigation up to the Court of Appeal on the enforcement notices, this is not an argument that can now be used in support of a submission that the breach is “technical”.

The nature of the breach

The claimant's judgment is that the breach of planning control has caused considerable harm. This judgment was vindicated in the Inspector’s decision of 7 April 1999, although that was primarily concerned with the validity of the enforcement notices and whether the material was “waste”. The claimant’s planning judgment was, however, totally vindicated by the decision of 5 September 2003. In these circumstances, while the jurisdiction remains original, the court gives considerable weight to the claimant's judgment.

The first defendant was, of course, entitled to challenge the enforcement notices and the decision to issue the stop notice. There can be no criticism of its doing that although its decision to continue to deposit material notwithstanding the dismissal of its application to judicially review the decision to issue the stop notice is open to criticism as showing a non-compliant attitude to the planning regime. In any event, whatever the position before the decision of the Court of Appeal in October 2001, since then, and in particular since the dismissal of the appeal against the refusal of planning permission for the 9 hole golf course on 5 September 2003, the first defendant’s conduct shows a longstanding failure and continued reluctance to comply with the enforcement notices, even on that part of the site in respect of which it accepts it must remove the deposited waste and for which there is no current planning application.

Do the dealings between the parties make it inappropriate to grant the claimant an injunction?

I do not consider the argument that the claimant has “moved the goal posts” during the period between the first Inspector's report in 1999 and the present day to be sustainable. It is certainly the case that the Council's position has not changed since May 2002 when the defendants' application for planning permission for the 9 hole golf course was refused. But even before that the claimant had made it clear that a substantial part of the waste had to go from the area to the east of the irrigation lake, that it was important to reflect very closely the underlying landform prior to depositing the waste, and that the idea of adding a 1 metre depth over agreed pre-existing contours which the defendant argued would allow 40,000 cubic metres of waste to be used on the site did not accord with the discussions between Ms Coyne and Mr Osment: see Mr Young's letter dated 8 November 2000. In the passage from Mr Young’s letter dated 29 October 2001 quoted at paragraph 34 above, Mr Young made it clear that the Council’s preferred option was for all the waste to be removed and that the case for retaining some of the waste depended on demonstrating very special circumstances for overriding green belt and other planning policy and an acceptable landscape solution. In fact, until late 2001 the position of the first defendant was that it wanted and was seeking to achieve a solution which involved no export of waste from the site: see for example Mr Wyatt’s letter of 10 October 2001.

Has the claimant considered all material circumstances in deciding to seek an

Mr Cousins’ report of 23 November 2004 is considered at paragraphs 38-41 of this judgment. There is also evidence as to the circumstances considered by the claimant in Ms Coyne's evidence: see paragraphs 27-31 of her first statement in relation to the harm caused by the breach, and paragraph 70 as to the financial impact on the defendants.

The claimant's judgment that the breach of planning control has caused considerable harm, a judgment which has been vindicated on appeal, is contained in this report. The claimant has also taken into account the history in which it has negotiated with the first defendant and its directors and planning advisors with a view to achieving a settlement. The planning applications that were made in the light of those negotiations in 2001 and 2002 did not, for the reasons that I have given, reflect the indications that the claimant had given as to what might be acceptable.

Mr Cousins’ report shows the way in which the claimant has taken into account the planning shortcomings of requiring the first defendant to comply with the enforcement notice. The report concluded that notwithstanding such shortcomings the need to resolve the breach of planning control outweighs them. The report does not address the issue of using waste to assist shielding residents from the lights of the driving range, but Ms Coyne’s second statement states that there is no prospect of SODC requiring the use of waste for this purpose, and in these circumstances, I do not consider this to be a significant matter. Of the other criticisms, Mrs Townsend submitted that in any event they assume that there will be no enforcement of the outstanding breach of planning control in connection with the lake and clay extraction site. Again, the court gives weight to the claimant's judgment on these matters of planning policy and judgment, although the fact that there is as yet no enforcement decision about the breach of conditions arising out of the clay extraction is a matter of concern, to which I will return.

Mr Cousins’ report does not address the question of the cost of complying with the enforcement notices. Ms Coyne states that the claimant has taken account of this and of the first defendant's income from its unlawful activities, that is the payment for the reception of material from the motorway service area site, and the extraction and sale of valuable blue clay without complying with the conditions of permission to extract the clay. The estimated cost of compliance in May 2003 was approximately £1 million, and it was not suggested that it would be significantly different now. Ms Coyne exhibits part of the first defendant’s accounts for 1996, 1997 and 1998 which show receipts for, amongst other things, hardcore tipping of respectively £59,839, £658,053 and £372,045. On the subject of cost, while Mr Wyatt states that complying with the enforcement plan would be very damaging financially because it would not produce a usable golf course or a final solution, no evidence has been placed before me that the cost is not sustainable by the first defendant. Mr Cousins’ report does consider the interrelation of this application and any enforcement of the breach of planning control in respect of the lake void. He states that while it is regrettable that the present application will not resolve that problem, this factor should not prevent the Council from pursuing the owners for their continued failure to remove the deposited waste by seeking an injunction pursuant to section 187B.

At the hearing I was concerned about this aspect of the case. Mrs Townsend submitted that the references to the safety of the edge of the lake are vague but that if they are correct it is open to the first defendant to seek planning permission for the operational development necessary to correct this situation. She submitted that the terms of the injunction sought by the claimant can exempt any material permitted to remain by the grant of planning permission for this or another purpose. I have concluded that her argument has force. The first defendant has taken no steps during the prolonged period since the breaches of condition in respect of the lake void first occurred. Mr Alesbury was not able to put before me any proposal for application for planning permission made by the first defendant to deal with this matter. In these circumstances, while it is obviously desirable for the position in relation to these breaches of condition to be addressed soon, this is not a reason for denying the claimant the relief it seeks in respect of a sensitive site within the green belt which has been the subject of a substantial breach of planning control for a number of years.

Will the defendant comply with the enforcement notice without an order?

It was not until after the claimant had indicated to the first defendant on 19 March 2004 that in the absence of an agreement the claimant would consider seeking an injunction as one of its enforcement options that the first defendant started to remove material from the site. Mr Wyatt’s second statement states that of the material removed in 2005 20,000 tonnes was arranged with a contractor in 2003 when the waste was found suitable for the contractor’s purposes. There is no reference to this arrangement in Mr Wyatt’s first statement which, after dealing with removal during 2004, states “between 4 July and 8 July 2005 I made arrangements for the removal of material from the site in further partial compliance with the requirements of the enforcement notices”. Moreover, there is no other evidence of such an arrangement. On the defendants’ own evidence most of the material has only been removed since these proceedings were first issued.

The recent application for planning permission suggests that the first defendant and its directors continue to seek all means of avoiding the removal of waste deposited on the site over 7 years ago. The recent application has to be seen in context. It is the third application seeking to retain significant quantities of waste on the site: it seeks to retain over 20% of the first defendant’s 100,000 cubic metre estimate when making its planning application in 2002. It has to be seen in the context of the continued failure to comply with the enforcement notices on the part of the site for which no planning application has been submitted and the absence of any proposal before the court for so doing, other than a statement that the first defendant accepts that the waste on that part of the site will have to be removed.

Secondly, the qualified nature of the undertaking which the first defendant is prepared to give in view of an injunction is not, in the circumstances of this case, sufficient to justify the court not granting one.

In assessing whether the defendants will comply I also take into account their conduct throughout the history of this matter, in particular their failure to cease importing material despite the stop notice and the failure of their judicial review action against the decision to issue the stop notice. The claimant submits that first defendant's attitude to planning controls is also seen by its failure to comply with the conditions to which the permission to extract clay for the irrigation lake was subject - i.e. the shape of the void and restoration of the site. Those failures have been deployed by the first defendant as reasons for not complying with the enforcement plan. While there has been no compliance, there has also been no enforcement action and so, while this is of some relevance, it is a matter of less weight than the other factors. The claimant also relied on the first defendant's breach of condition in respect of the driving range bund. This concerns a planning matter for which the South Oxfordshire District Council is responsible. Since the court has no material before it as to that Council's attitude, I take no account of this in determining whether the defendant will comply with the enforcement notices without an order. The other factors to which I have referred have, however, led me to conclude that it is necessary for me to grant an injunction.

Should relief be deferred pending the outcome of the planning appeal?

The argument that relief should be deferred pending the planning appeal has to overcome the hurdle that in general, while a short period of suspension might be appropriate, injunctions which should otherwise be granted should not be suspended by reference to the expected result or duration or the planning process: see Waverley BC v Lee [2003] EWHC 29 (Ch), EWHC 941 (QB). That this is not invariably so is shown in Mid-Bedfordshire DC v Smith [2003] EWHC 932 (QB). I do not, however, consider that relief should be denied in this case on this ground. First, to do so would result in a further delay in respect of a breach of planning control that commenced as long ago as 1997. Secondly, as stated earlier in this judgment, the application for planning permission does not cover the whole site. Thirdly, I take into account the fact that this is the third application for planning permission. The last one was refused on 21 May 2002 and the appeal from the May 2001 application was dismissed in September 2003. The first defendant has had a substantial opportunity to seek to remedy his breach by making a suitable planning application. I have, for the reasons given above, concluded that the claimant did not “move the goalposts” as to its indications of what would be acceptable to it during that time or since its refusal of planning permission in May 2002. In these circumstances the further delay is not justified.

Fourthly, although there will undoubtedly be a financial loss to the first defendant if its appeal ultimately succeeds, this loss must be seen in the light of its history of breaching planning controls and the length of time for which the present breach has continued. Fifthly, I take into account the inspectors' decisions as to the seriousness of the breach.

Proportionality

I have concluded that notwithstanding the financial consequences of granting an injunction in this case and the fact that to do so does not address the breaches of condition concerning the lake void, in the circumstances of this case (see my conclusions in (1)-(6) above) it is proportionate to grant the injunction. This is a breach of planning control which has persisted since 1997 on a site within Oxfordshire’s green belt. The breach is a substantial one which seriously detracts from the former openness of the site and conflicts with both waste and green belt policies. The first defendant has had ample opportunity to seek to cure the breach by a suitable application for planning permission but has not done so. Nor has it sought to address the breaches of condition concerning the permission to extract clay and create an irrigation lake by remedial work or by an application for planning permission. In these circumstances the public interest in the environment and maintaining the system of planning control outweighs the fact that compliance with the enforcement notices may not in itself produce the ideal outcome until the other breaches are addressed. The defendants have not argued that the financial damage they will suffer is sufficient to constitute hardship. I therefore make an order in respect of the first defendants but give further consideration to its terms below.

Should relief be given against the second and third defendants?

I have concluded that, at present, relief should only be given against the first defendant and I adjourn consideration of the question of relief against the second and third defendants. The claimant has argued that each of the defendants is responsible for the present state of affairs and each should be made responsible for ensuring compliance with the terms of the injunction. It is argued on behalf of the second and third defendants that, while they are directors and shareholders of the first defendant, they have no direct legal interest in the land concerned and none of the previous legal proceedings, including the enforcement and stop notices, have ever been served on them personally. Mr Ronald Wyatt accepts that he was the director most responsible for instructing the company’s professional and legal advisors on the planning issues relating to this site but argues that it is inappropriate for the proceedings to be served on himself and his brother as well as the company. This is not a case in which the owner of the property had no role in the activities. Nor is it a case in which it has been suggested by the claimant that an order against the first defendant would not be effective. Such an order would require the company through its directors, who are the second and third defendants, to re-instate the land in accordance with the plan. Should it appear that there is a specific reason for considering that the order against the first defendant is inadequate to ensure compliance with the enforcement notices the claimant will, as a result of my adjourning this aspect of the case, be able to return to the court.

The period within which there should be compliance.

Ms Coyne suggested that 36 weeks be given for the removal of the waste. Mr Alesbury, in a note provided at my request after the hearing, states that the defendants’ view “based on their belief as to approximately how much “waste” remains on site, is that a minimum period of 11 calendar months ought to be allowed for the parts of the requirements involving earth movements but that within that period there would be a reasonable prospect of carrying out the three operations required, waste removal, topsoil spreading, and preparation for seeding”. The parties agree that September is a reasonable month for sowing grass seed but the defendants submit that sowing in early October is also successful and submit that should be allowed for by making the end of October 2006 the time limit for that part of the exercise. I have considered the basis on which Ms Coyne suggested 36 weeks be given for the removal of the waste. I have concluded that this would be a tight schedule but that the 11 months proposed by the defendants is too long. Accordingly, the injunction will require the waste, save for that waste which is permitted to remain and is not required to be removed by the requirement of an enforcement notice and the preparation of the surface of the tipped area for seeding by 31 August. This would permit the first defendant to complete the seeding by 15 October 2006.

The claimant accepts that should the first defendant obtain planning permission for the operational development necessary to remedy the breach of condition around the lake the terms of the injunction should exempt any material permitted to remain on the site by the grant of planning permission. The terms of the order should so exempt any such material. Mr Alesbury submits that the order should also provide for liberty to apply to the court for an extension of time should unexpectedly adverse weather conditions make the time table impracticable. I accept this submission and the order as drawn up should contain such provision.